CERD and Racial Justice: Its an International Thing

Antoine Morris

CERD and Racial Justice: Its an International Thing

On February 21st and 22nd, the United States government will defend the submission of its periodic report regarding its compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) before a United Nations Committee. The U.N. treaty’s various articles require the collection of data and monitoring of ongoing racial discrimination; they mandate that all levels of government repeal or nullify any law that perpetuates a discriminatory purpose or effect, and remedy racial disparities within the justice system. Violations of the treaty are considered human rights violations.

Predictably, the government’s 2007 report tried to shirk its treaty obligations in a number of different areas. For starters, it made no mention of how the U.S. Census Bureau regularly undercounts racial minorities but overcounts whites. State-sponsored racial discrimination of this nature is a clear violation of Article 2 of the treaty. Furthermore, as the Leadership Conference on Civil Rights notes in its shadow report, an accurate census count is critically important since the data is used “to reapportion the House of Representatives and to redistrict political jurisdictions at all levels of government. [The] data is used by many federal agencies and private litigants to help determine where disparities exist, [and] where remediation is required by law.”

The government’s 2007 report also neglected to mention the depth of racial discrimination in the aftermath of two seminal events: 9/11 and Hurricane Katrina. Touting its lackluster “Initiative to Combat Post 9/11 Discriminatory Backlash,” and its toothless federal ban on racial profiling as prime examples of its vigilance in combating discrimination based on race and national origin, the government tried to downplay its perpetuation of CERD violations.

The American Civil Liberties Union CERD shadow report points out that the government was conspicuously silent about its abuse of material witness warrants, and special registration programs requiring “terrorist suspects” to be fingerprinted, photographed, and questioned. “The domestic component applied exclusively to male citizens and nationals of twenty-five countries, all but one, predominantly Muslim and located in the Middle East, South Asia or North Africa (that one [exception] is North Korea).” Though none of the men in the program ever were charged with terrorism, many were detained or deported. This failure to ensure equal treatment before the law and the coercive use of governmental power for discriminatory purposes is a blatant violation of Article 5 of CERD.

The government’s meager defense is that the “current Administration was the first to issue racial profiling guidelines for federal law enforcement officers and remains committed to the elimination of unlawful racial profiling by law enforcement agencies.” But this so-called “ban” on racial profiling does not apply to all state and local law enforcement authorities where so much of the racial profiling is being carried out; therefore the ban does not actually address the problem. Additionally, the Justice Department made it clear exceptions to the ban can be made for purposes of “terrorist identification.” And to make matters worse no one is gathering data to monitor whether or not federal authorities themselves are complying with the ban.

In another attempt to avoid having to account for several other Article 5 violations, the government has also tried to reduce the tragic aftermath of Hurricane Katrina to being solely an issue of poverty, rather than admit it was a consequence of both poverty and racism. There is only one paragraph (para. 255) devoted to Katrina in its 132-paged report, and in it the government callously claims:

Recognizing the overlap between race and poverty in the United States, many commentators conclude nonetheless that the post-Katrina issues were the result of poverty (i.e., the inability of many of the poor to evacuate) rather than racial discrimination per se.

The U.S. government does not seem to understand that under CERD there is no distinction between discriminatory intent and discriminatory effect. They are one in the same. But in citing this legalism, the government sidesteps mentioning how the federal Katrina evacuation plan was mainly a vehicular plan despite the fact nearly a quarter of New Orleans residents, most of whom were black, did not own cars. As a result, most of those who perished were black, elderly, poor or all three. There is also no mention of reports of certain police officers forbidding black people from evacuating the city during the storm. Nor did the government report pay any real attention to how the housing crisis in New Orleans may result in the depletion loss of 80 percent of its pre-Katrina black population. Or how the overburdened public defender system, which mostly represents black defendants, was so backlogged after the storm that one judge had to let 1,000 defendants out of jail because even nine months after the storm they had no access to lawyers.

In response to the egregious omissions of the government's 2007 report, the NGO community, most notably the U.S. Human Rights Network, issued its own collection of comprehensive CERD shadow reports on issues ranging from the juvenile justice system to the militarization of American borders, to homelessness – highlighting the instances in which the federal government is guilty of discrimination and in violation of CERD.

If the U.S. government sincerely believes human rights are the cornerstone of democracy, it cannot, in good faith, promote democracy abroad without at least acknowledging its own shortcomings at home. As Denis Parker of the ACLU said, "The eyes of the world will be on the United States during the hearings in Geneva. It is time for our government to address the persistent structural racism and inequality occurring in this country and to begin to look for solutions."